Civil litigation evidence: refers to objective factual materials that can prove the true situation of a civil case. Evidence in civil litigation has three most basic characteristics, namely objective authenticity, relevance and legality. According to the standards for the presentation of evidence in civil litigation stipulated in civil litigation laws, the presentation of evidence in civil litigation in my country can be divided into seven types: documentary evidence, physical evidence, audio-visual materials, witness testimony, party statements, appraisal conclusions, and inspection records.

Article 63 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" stipulates: "The People's Court shall make judgments in accordance with the law based on the facts of the case that can be proved by the evidence." This establishes the principle of evidence identification. . The identification of evidence in civil litigation is the only way to ascertain the facts of the case. The basis for the judge to ascertain the facts of the case is limited to the evidence "presented in court" in front of him. He cannot obtain relevant information about the facts of the case from other channels, let alone because of insufficient evidence. Refusal to referee. Therefore, the identification of evidence in civil litigation is particularly important in the entire trial activities. The admission of evidence is directly related to the ascertainment of the facts of the case and the application of the law, and is the "cornerstone" of the court's judgment.

1. Types of evidence in civil litigation

1. Documentary evidence. It refers to the evidence that proves the truth of the case through the content recorded in words, symbols, graphics, etc. or the thoughts expressed. The reason why this kind of item is called documentary evidence is not only because its appearance is in written form, but more importantly, the content it records or expresses can prove the facts of the case. From the perspective of judicial practice, documentary evidence can be expressed in various forms. From the perspective of the expression method of documentary evidence, there are written, printed, and engraved forms. From the perspective of the carrier of documentary evidence, there are paper, bamboo, wood, etc. Cloth and stones, etc. In terms of specific forms of expression, common ones include contracts, documents, bills, trademark patterns, etc. Therefore, the main form of documentary evidence is various written documents, but sometimes it also appears as various items. Documentary evidence is a commonly used type of evidence in civil litigation and plays a very important role in civil litigation.

2. Physical evidence. Physical evidence refers to evidence that proves the facts of the case based on its shape, quality, specifications, characteristics, etc. Physical evidence proves the true situation of the case through its external characteristics and its own attributes. It is not affected and restricted by people's subjective factors. Therefore, physical evidence is one of the important pieces of evidence in civil litigation. Common physical evidence in civil litigation includes: the subject matter of the dispute (houses, items, etc.); objects damaged by infringement (processed items, clothing, etc.); traces left behind (imprints, fingerprints), etc.

3. Audio-visual materials. Audio-visual materials refer to a type of evidence that uses audio recordings, video recordings, information and data stored in electronic computers to prove the facts of a case. It includes video tapes, audio recordings, fax data, film reels, microfilm, telephone recordings, radar scan data and computer storage data and information. Foreign civil procedure laws generally do not treat audio-visual materials as an independent type of evidence, and only classify them into the categories of documentary evidence and physical evidence. In view of their independent characteristics, our civil procedure law classifies them into an independent category. evidence to be used.

4. Witness testimony. A witness refers to a person who knows the facts of a case and comes to the court to testify at the request of the parties and the court's summons. The statement made by the witness to the court on the facts of the case is called a witness testimony.

5. Statement of the parties. The parties' statements refer to the statements made by the parties to the court regarding the facts related to the case during the litigation. The party's statement as a type of evidence is a characteristic of the classification of types of evidence in civil litigation in my country. The parties are the main body of the legal relationship in civil litigation. Since they have a direct interest in the outcome of the litigation, the statements made by the parties are characterized by the coexistence of truth and falsehood. Therefore, when using this evidence, judges should be careful to prevent false evidence from being used as a basis for determining the facts of the case. The statements of the parties should be reviewed and verified in conjunction with other evidence in the case to determine the basis for determining the facts of the case.

6. Identification conclusion. It refers to the conclusion made by the appraiser after using professional knowledge and expertise to analyze, identify and judge the specialized issues in the case, which is called the appraisal conclusion. The appraisal conclusions in civil litigation are extensive and diverse, usually including medical appraisal conclusions, document appraisal conclusions, trace appraisal conclusions, accident appraisal conclusions, product quality appraisal conclusions, accounting appraisal conclusions, behavioral capacity appraisal conclusions, etc.

7. Inspection records.

It refers to the records recorded by the judges of the people's court who, during the course of the litigation, in order to ascertain certain facts, personally inspect, photograph, and measure the scene, items or objects related to the case dispute, or designate relevant personnel.

2. Determination of civil litigation evidence

After the civil litigation evidence is submitted to the court, the judge will review and judge the evidence in accordance with legal provisions and decide whether to adopt it as a basis for determining the facts of the case. according to. It can be seen that the identification of civil litigation evidence is to review and judge the civil litigation evidence, mainly to exclude evidence that obviously cannot be used as a basis for finalizing the case. It can be said that the admission of civil litigation evidence is actually a process of "screening" evidence. The review is mainly conducted from the following aspects:

1. Time limit for proof. my country's Civil Procedure Law only stipulates that the parties have the burden of producing evidence, but does not stipulate the time limit for the parties to produce evidence. At present, the theoretical circles have different opinions on the issue of limitation of evidence. Some people believe that it is both an obligation and a right of the parties to provide evidence. Therefore, the parties have the right to provide evidence at any stage of the trial and in the court at the trial level. The court cannot restrict it. The provision of a statute of limitations for the production of evidence is equivalent to limiting the litigation rights of the parties; Some people believe that my country's current civil procedure law does not stipulate a statute of limitations for the production of evidence. At any stage of the trial, the parties can present evidence "at any time", which can easily lead to sudden attacks and delays in litigation, thus damaging the efficiency and fairness of litigation. In order to truly implement The party's burden of proof must establish a statute of limitations for proof. Before a certain stage, if the party cannot or fails to provide evidence, it shall bear legal consequences that are detrimental to itself. Since the relevant laws of our country do not provide for the issue of limitation of evidence, the operation in practice is relatively confusing, and the practices in various places are not uniform. Some stipulate that the parties must provide evidence before the first instance hearing; some stipulate that the parties must submit evidence before the first instance court collegiate hearing; some stipulate that the parties must submit evidence within the first instance hearing limit; and some stipulate that the parties can still submit evidence during the second instance. The author believes that the uncertainty of the time limit for the parties to produce evidence or that the parties do not produce evidence on time will often affect the efficiency of civil litigation, increase litigation costs, and increase the litigation burden of the other party. More importantly, the trial activities are easily affected by the invisible constraints of the parties' evidence production. This results in passivity in trial activities and uncertainty in judgment results. Therefore, it is very necessary to establish a time limit system for producing evidence. Generally, the time limit for the parties to produce evidence is limited to before the court of first instance opens the hearing; if the party really has difficulty in submitting evidence before the expiration of the time limit for producing evidence, he should apply to the People's Court for an extension before the expiration of the time limit for producing evidence. If the court agrees, it may be extended appropriately; during the second instance or retrial, if a party submits new evidence and requests to revoke or change the original judgment, unless there are special circumstances, in principle, it will no longer be accepted, and it will be regarded as giving up the right to produce evidence at the first instance, and the party shall It bears the legal consequences of failure to provide evidence in order to maintain the seriousness and stability of the effectiveness of the court's judgment.

2． Illegal evidence is excluded. The method of obtaining evidence must be legal, including the source of evidence and the means and methods used to obtain evidence. The people's court and agents ad litem must also abide by legal procedures when investigating and collecting evidence. Article 70 of the Supreme People's Court's "Opinions on Several Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China" stipulates: "The collection of investigation evidence by the People's Court shall be conducted jointly by two or more people. Investigation materials must be Signed or sealed by the investigator, the person under investigation, and the recorder. "The investigation and collection of evidence by the litigation agent should also be conducted jointly by the two persons. Article 28 of the "Working Rules for Township Legal Services" issued by the Ministry of Justice in September 1991 stipulates: "The agent shall hold the certificate of the township legal service office and the certificate of the township legal worker to investigate and collect evidence from relevant units and individuals. The investigation generally shall Two people will conduct the investigation and make a record. After the investigation record is verified by the person under investigation, it will be signed or sealed by the investigator, the recorder, and the person under investigation. "Whether the lawyer, as an agent, must conduct the investigation and evidence collection together. , the Interim Regulations on Lawyers and the Lawyers Law do not provide clear provisions, and the theoretical and judicial circles also have different understandings. Some insiders believe that lawyers’ investigation and evidence collection should also be conducted jointly by two lawyers or one lawyer and one paralegal*** to avoid being at a disadvantage in litigation, especially when serving as criminal defense. If someone is accused of colluding with confessions, providing Danger of perjury, etc. This is based on the understanding of improving lawyers’ self-protection awareness and self-protection capabilities. The author believes that as litigation agents, there is no essential difference between lawyers and other legal workers. Their purpose is to protect the legitimate rights and interests of the parties to the greatest extent.

Especially in civil litigation, the litigation status of the parties is equal, and the rights enjoyed by lawyers and legal workers as litigation agents should be the same. Therefore, it is appropriate for lawyers to conduct investigation and evidence collection at the same time. It is recommended that the Supreme People's Court or the Ministry of Justice make clear provisions on this to standardize the procedures for investigation and evidence collection. It is strictly forbidden to use illegal methods to collect evidence. According to the provisions of laws and judicial interpretations, the following are the following circumstances for illegal collection of evidence: forging evidence; bribing or coercing witnesses to testify or instructing others to give false testimony; obtaining evidence in a manner that infringes upon the legitimate rights and interests of others or violates prohibitive provisions of the law. evidence. Evidence obtained illegally cannot be used as a basis for determining the facts of the case. It should be noted that the Supreme People's Court previously included conversation materials secretly recorded without the consent of the counterparty into the scope of illegal evidence. However, the "Several Provisions of the Supreme People's Court on Evidence in Civil Procedures" diluted this provision, which is very humane. and rationalized. In fact, in real life, due to the contradiction between the development of productivity and people's growing needs for material and cultural life, the social integrity crisis still exists to a certain extent. When the parties collect evidence on their own, it is necessary to obtain the consent of the other party before recording the conversation materials. The success rate is almost zero. Real evidence is only possible if it is secretly recorded. Therefore, the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" is relatively more scientific and reasonable, and easier to operate.

3. Admissibility of evidence. The admissibility of evidence is a title in the common law system, and the concept with the closest meaning to it in the evidence jurisprudence of civil law countries is evidentiary capacity. In the Anglo-American legal system, the admissibility of evidence is mainly related to the relevance and legality of the evidence, which reflects the requirements of the character evidence rules related to relevance. Although countries under the civil law system have also formulated rules for the exclusion of illegal evidence, the restrictions on the qualifications of evidence are generally not strict, and the review and determination of evidence is based on the probative strength. In our country's evidence theory, evidentiary capacity generally corresponds to the so-called legitimacy in traditional evidence theory, while probative power reflects the relevance and objectivity of evidence. In short, the legality of evidence is a concept closely connected with the admissibility of evidence or the ability of evidence. Reasonably grasping and defining the connotation and extension of the concept of legality of evidence will directly affect the determination of evidence qualifications. Specifically, it mainly includes the legitimacy of the subject of evidence collection, the legitimacy of the evidence form, and the legitimacy of the evidence collection methods and procedures. But not all evidence that is illegal is inadmissible. Different countries have different values ??in criminal proceedings: countries with common law systems emphasize the value of protection, so they have a stricter grasp of the qualifications of evidence; civil law systems place relatively more emphasis on the value of litigation control, so they take a more cautious attitude towards the exclusion of evidence. Generally, there are no strict restrictions on the qualifications of evidence. First, the legality of the subject of evidence collection must be examined. The person collecting or providing the evidence is illegal, and the resulting evidence is not admissible. Investigation transcripts produced by non-judicial agencies in accordance with the procedures stipulated in relevant administrative, disciplinary inspection, supervision and other regulations before filing a case. If special circumstances such as the death of the person under investigation or departure from the country occur that make it impossible to obtain evidence, the authenticity of the original evidence collection process shall be verified by the court. , Legality (in compliance with relevant administrative, disciplinary inspection, and supervision regulations on investigation and evidence collection) can be used as evidence after investigation and verification. Legality of forms of evidence. The form of evidence mainly refers to the legal provisions and formal requirements on the types of evidence. Witnesses must be natural persons, and entities cannot be witnesses. Legality of evidence collection methods. In view of the fact that illegally obtained physical evidence is less likely to be false and has higher credibility, the properties and status of the evidence generally do not change due to the illegality of the evidence collection method, so it is admissible in principle; for witnesses, only the location of the inquiry If the authenticity of the original testimony is denied on the grounds of general illegal reasons such as legal procedures, formalities, etc., the witness can provide a reasonable explanation. If upon investigation there are indeed reasons that may cause the witness to testify incorrectly, his testimony under this illegal evidence collection will not be admissible. However, if the above-mentioned reasons do not exist, the court shall comprehensively judge the authenticity of the witness's original testimony based on his previous and subsequent testimony.

4． Allocation of the burden of proof. The first is the special rules for the allocation of the burden of proof - the application of the principles of good faith and fairness. The principle of good faith in civil procedure law originates from the ancient Roman "good faith litigation", which gives judges the power to adjudicate cases based on the principles of honesty and fairness and justice. Because countries with written laws will face the same embarrassing situation: the relative lag of the law cannot fully cover the ever-changing social situation.

This limitation is not only reflected in substantive law, but also exists in procedural law, especially in the evidence system. Since judges cannot fully adopt statutory doctrine in the distribution of the burden of proof, judges, in the absence of express provisions in the law, The principle of good faith should be used as the principle of its distribution behavior. This is undoubtedly the basis for judges to enjoy discretion and is of great significance to overcoming the limitations of statutory law. The principle of fairness, as the name suggests, is a criterion of fairness and equality. During the process of evidence distribution, judges must not only pay attention to the fairness of the distribution results, but also take into account the fairness of the distribution process. The values ??of the principles of fairness and good faith are reflected throughout the entire process of the judge's allocation of the burden of proof. Whether it is the general rules for the allocation of the burden of proof, the inversion of the burden of proof, or the burden of the burden of proof under special circumstances, they should be applied. In judicial practice, one of the most common phenomena that violates the principles of good faith and fairness is obstruction of proof, which means that one party has the burden of proof, but because the other party intentionally or negligently destroys or is unable to present the only evidence in the lawsuit, So that it is impossible to prove one's own claims, resulting in a special litigation phenomenon in which the authenticity of the facts is unclear. Parties who have committed acts of obstructing the production of evidence must bear certain punitive consequences for hindering the smooth progress of the litigation. The law requires them to bear more of the risk of losing the lawsuit, which is an essential requirement of the principle of procedural legitimacy. At the same time, it is very necessary to establish a supporting evidence system to hinder the production of evidence. On this basis, we believe that the burden of proof should be transferred for the following two types of obstruction of evidence: first, deliberately destroying evidence or fabricating evidence, preventing others from testifying or instructing others to make perjury; second, causing litigation due to intentional or gross negligence. The only evidence is lost.